Nirmal v. Balakrishnan M.V. and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946** ## **MACA NO. 3296 OF 2017** **ARISING OUT OF THE AWARD DATED 23.05.2017 IN OP(MV) NO.8/2016 OF** ## **MACT, OTTAPPALAM** ## **APPELLANT:** ## **NIRMAL** **AGED 21 YEARS S/O. MUKUNDAN, PATTURAIKKAL HOUSE, 28 THURUVAMBAY, THRISSUR DISTRICT.** **BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS:** **1 BALAKRISHNAN M.V. S/O.VELAYUDHAN, MANAKULAM PARAMBIL HOUSE, P.O CHEROOR, THRISSUR - 680 008(OWNER CUM DRIVER OF MOTOR CYCLE KL - 08 T 1142)** **2 UNITED INDIA INSURANCE CO. LTD FAIZAL BUILDING, MAIN ROAD, OTTAPALAM, POLICY NO.1006003114 P 105698541 VALID FROM 28.10.2014 TO 27.10.2015.** **BY ADVS.** **SRI. JOHN JOSEPH VETTIKAD (B/O, NO MEMO) SRI. JOHN JOSEPH VETTIKAD BO NO MEMO SRI.AGINOV MATHAPPAN SMT.K.SHERIN MOHAN** **BY ADVS.** **AGINOV MATHAPPAN, SC K.SHERIN MOHAN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO.3296/2017** **2** ## **JUDGMENT** _Dated this the 12[th] day of April, 2024_ Aggrieved by the quantum of compensation awarded in O.P.(M.V.) No.8 of 2016 filed before the Motor Accident Claims Tribunal, Ottapalam (herein after referred to as the ‘Tribunal’) this appeal is filed by the appellant who was the claimant therein. 2. Facts in Brief: On 27.05.2015 at about 12.30 pm, while the appellant was travelling as a pillion rider on a scooter, a motor cycle bearing registration No.KL-08/T-1142 owned by the 1[st] respondent and driven by him in a rash and negligent manner hit against the scooter in which the appellant was travelling. Appellant suffered Lacerated wound Rt. foot dorsum 5 cm x 2 cm and undisplaced crack fracture 3[rd] metatarsal Rt. foot and he was taken to the hospital where he underwent treatment as inpatient for few days. He filed the OP (MV) seeking a compensation of Rs.2,50,000/- arraying the insurer of the motor cycle as the 2[nd] respondent therein. The 1[st] respondent **MACA NO.3296/2017** **3** remained _ex parte_ in the OP (MV) and the 2[nd] respondent insurer filed a written statement. In the written statement, though the 2[nd] respondent admitted that they had insured the motor cycle bearing reg. No. KL-08/T-1142, they denied that the accident occurred due to the negligence of the 1[st] respondent. The 2[nd] respondent also disputed the quantum of compensation claimed and the statements regarding age, occupation and income of the appellant. The nature of the injuries claimed to have been suffered by the appellant as well as the quantum of compensation claimed was also denied by the 2[nd] respondent insurance company. 3. The Tribunal framed three issues and parties went to trial. Appellant was examined as PW1 and he produced Exts. A1 to A12. Respondents did not produce any documents in evidence. 4. The Tribunal found that the accident was caused due to the negligence of the 1[st] respondent. An Award for Rs.1,39,040/- with interest @ 9% per annum from the date of the petition upto the date of payment with proportionate cost to the appellant from the 2[nd] respondent was rendered by the Tribunal. This MACA is filed by the appellant challenging the **MACA NO.3296/2017** **4** said Award. 5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent insurance company. 6. Appellant's contentions in the MACA against the Award of the Tribunal are as follows: # The amount awarded under the head of 'pain and suffering' is too meager and inadequate. # Tribunal failed to award any amounts towards future treatment. # The future prospects of the appellant was not considered by the Tribunal in the proper perspective. # The amount awarded under the head of 'loss of amenities and enjoyment of life' is inadequate. 7. Per contra, the learned counsel appearing for the insurance company submits that just and reasonable amounts have been awarded by the Tribunal in the facts and circumstances of the case and since the Award does not merit any interference, the MACA may be dismissed. 8. I have considered the contentions raised by the respective counsel and have perused the Award and pleadings. **MACA NO.3296/2017** **5** 9. The tribunal took note of Ext. A1 copy of the FIR and the Ext. A3 copy of the charge sheet wherein it was revealed that a case has been filed against the 1[st] respondent under Sections 279 and 338 of the IPC before the Judicial First Class Magistrate Court No.II, Thrissur. Connected documents including Ext. A4 scene mahazar and Ext. A5 copies of AMVI reports were also considered by the Tribunal. Based on the dictum laid down in **New India Assurance Company Ltd. v. Pazhaniammal** and others [2011 (3) KHC 595] the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent. 10. Regarding the entitlement of the appellant to claim compensation, the Tribunal taking note of Ext. A2 copy of the Accident register cum Wound Certificate and Ext. A6 Discharge Summary concluded that the appellant is entitled to get compensation as envisaged under law. Coming to the quantum of compensation, the Tribunal disallowed the claim for Rs.20,000/- towards partial loss of earnings sought by the appellant and this is averred by the counsel for the claimant as erroneous. The refusal to grant any amounts towards future medical expenses is also termed as incorrect by the counsel for **MACA NO.3296/2017** **6** the appellant. The amount of compensation arrived at under the heads of pain and suffering, compensation for continuing permanent disability and loss of enjoyment and amenities of life are the other heads pointed out by the counsel for the appellant wherein the appellant is aggrieved by the quantum of compensation awarded. The claims under each head are considered separately as follows: 11. Head of ‘Partial Loss of Earning’: Under this head, though the appellant had sought for Rs.20,000/- as compensation, no amount has been awarded by the Tribunal. Appellant was aged 20 years and was a student during the time of the accident. A notional income of Rs.6,000/- has been computed by the Tribunal in the Award for the purpose of determination of compensation. Appellant has undergone treatment as inpatient for a period of 8 days. From the documents viz., Ext.A2 Wound Certificate, Ext. A6 Discharge Summary and Ext.A7 Disability Certificate, Ext.A8 lab reports, Ext.A9 copy of the Medical certificate, A10 scan report and A11 and A12 Prescription and medical bills respectively, produced before the Tribunal, it can be reasonably presumed that he might have been incapacitated at least for a period of three **MACA NO.3296/2017** **7** months. It is fair, reasonable and just in the facts and circumstances of this case that the notional income is taken as Rs.8,000/-. Computing at the rate of Rs.8,000/- for three months, the partial loss of earning is fixed at Rs.24,000/-. 12. Head of ‘Pain and Suffering’: An amount of Rs.50,000/- was sought by the Appellant under this head and the Tribunal has granted Rs.20,000/-. Taking note of the gravity of the injury sustained by the Appellant and the nature of injuries which have been described as Lacerated wound Rt. foot dorsum 5 cm x 2 cm and un-displaced crack fracture 3[rd] metatarsal Rt. foot and the fact that he had undergone inpatient treatment for 8 days, the amount of Rs.20,000/granted by the Tribunal is increased to Rs.25,000/- . 13. Head of ‘Permanent Disability’: The appellant had sought a compensation of Rs.1,00,000/- towards for continuing permanent disability of 5%. The Tribunal had, taking the notional income as Rs.6,000/- and applicable multiplier as 18, awarded an amount of Rs.64,800/- towards compensation for continuing permanent disability (6000x12x18x5/100=64,800/-). Since the notional income of Rs.6,000/- has been found to be inadequate and it has been **MACA NO.3296/2017** **8** re-assessed at Rs.8,000/-, the compensation for permanent disability has to be calculated as Rs.86,400/(8,000x12x18x5/100=86,400/-). 14. Head of ‘Loss of Enjoyment and Amenities of Life’: Under this head, the appellant had sought an amount of Rs.50,000/- and the Tribunal had awarded Rs.10,000/-. It is trite and settled law that as laid down by the Hon'ble Supreme Court in **Benson George v. Reliance General Insurance Co. Ltd. & Anr.** [2022 KHC 6232] that there cannot be straight jacket formula regarding compensation to be awarded under the heads of pain and suffering and loss of amenities. It depends on the circumstances of each case and it varies from person to person who has suffered due to the accident. Considering the nature of the injuries and the effect of the injuries on the personal life of the appellant and also taking into consideration his age, compensation under this head is altered from Rs.10,000/- granted by the Tribunal to Rs.15,000/-. 15. Pursuant to the above enhancements made, the amount of compensation under the different heads in the Award stand altered as per the table below: **MACA NO.3296/2017** **9** |Sl.No.|Head of claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Amount modified<br>and recalculated<br>by this Court (Rs.)| |---|---|---|---| |1|Partial loss of earning|Nil|24,000/-| |2|Transportation expenses|3,000/-|3,000/-| |3|Extra nourishment|1,600/-|1,600/-| |4|Damage to clothing etc.|1,000/-|1,000/-| |5|Medical and miscellaneous<br>expenses|37,040/-|37,040/-| |6|Future medical expenses|Nil|Nil| |7|Bystander expenses|1,600/-|1,600/-| |8|Pain and suffering|20,000/-|25,000/-| |9|Compensation for continuing<br>permanent disability|64,800/-|86,400/-| |10|Loss of enjoyment and<br>amenities of life|10,000/-|15,000/-| |Total||1,39,040/-|1,94,640/-| The Award of the Tribunal is modified to the above extent entitling the appellant to a total amount to Rs.1,94,640/- under the respective heads as tabulated above. Thus the total enhancement allowed in the MACA is Rs.55,600/-. Amounts granted under other heads in the Award remain unaltered. Needless to add, the amounts already awarded by the Tribunal under each or any of these heads has to be deducted from the above amount awarded. Appellant will be entitled to interest @ 8% per annum from the date of OP(MV) on the enhanced **MACA NO.3296/2017** **10** amount. However, the appellant will be dis-entitled for the interest for the period of 40 days which was the period of delay in filing the MACA which was condoned by this Court vide Order dated 24.10.2017 in C.M.Appln.No. 3750 of 2017 in the above MACA. MACA stands disposed as above. Sd/- **SYAM KUMAR.V.M. JUDGE** csl